104 F.

3d 352

NOTICE: THIS SUMMARY ORDER MAY NOT BE CITED

AS PRECEDENTIAL AUTHORITY, BUT MAY BE CALLED
TO THE ATTENTION OF THE COURT IN A SUBSEQUENT
STAGE OF THIS CASE, IN A RELATED CASE, OR IN ANY
CASE FOR PURPOSES OF COLLATERAL ESTOPPEL OR
RES JUDICATA. SEE SECOND CIRCUIT RULE 0.23.
William BENSON, on Behalf of Lee Fabiano, PlaintiffAppellant,
v.
DEPARTMENT OF HEALTH AND HUMAN SERVICES,
Defendant-Appellee.
No. 96-6108.

United States Court of Appeals, Second Circuit.

Nov. 21, 1996.
1

Appearing for Appellant: William Benson, Pro Se (Brooklyn, NY)

Appearing for Appellee: Arthur P. Hui, Assistant U.S. Attorney (Zachary W.

Carter, U.S. Attorney; Varuni Nelson, Assistant U.S. Attorney; Eastern District
of New York)

E.D.N.Y.

AFFIRMED.

Before OAKES, CALABRESI, Circuit Judges, and HAIGHT, Jr., District

Judge.*

ORDER
6

UPON CONSIDERATION of this appeal from a judgment of the United States

District Court for the Eastern District of New York (Sifton, C.J.), it is hereby
ORDERED, ADJUDGED, AND DECREED that the judgment be and it

hereby is AFFIRMED.

Lee Fabiano, by her representative William Benson, appeals from a judgment

of the United States District Court for the Eastern District of New York (Sifton,
C.J.), denying a motion for reconsideration of its decision to uphold Fabiano's
termination by the Department of Health and Human Services ("DHHS"). We
affirm.1

In January 1985, Fabiano filed a pro se complaint pursuant to Title VII of the
Civil Rights Act of 1964, as amended, 42 U.S.C. 2000e et seq., against her
employer for wrongful termination based on her race, religion, national origin,
age, and disability. After DHHS answered the complaint, Fabiano filed a
motion to stay the proceedings pending a decision in a related action in the
Court of Appeals for the Federal Circuit. In her stay motion, Fabiano stated to
the court that "[u]pon receipt of a decision from the Court of Appeals you will
be immediately notified." In July, 1986, pursuant to the stay motion, the district
court administratively closed the case without prejudice to re-instatement.
Unbeknownst to the district court, the Federal Circuit had already dismissed
Fabiano's appeal for lack of jurisdiction on November 15, 1985.

10

Nearly seven years later, on May 5, 1983, Fabiano moved in the district court to
reopen the case without mentioning the Federal Circuit action or giving any
reason why her case should be reopened. After a hearing, on January 12, 1994,
the court granted DHHS's motion to dismiss for failure to prosecute. Fabiano
then filed five motions for reconsideration, pursuant to Fed.R.Civ.P. 60(b), all
of which the district court denied. This appeal of the denial of the fifth motion
for reconsideration ensued.

11

"The standard for review of the denial of a Rule 60(b) motion is abuse of
discretion." Branum v. Clark, 927 F.2d 698, 704 (2d Cir.1991). We find that
the district court did not abuse its discretion in denying the motion to reconsider
its January 12, 1994, motion to dismiss for failure to prosecute.

12

A district court has inherent authority to dismiss a plaintiff's action for failure to
prosecute. Link v. Wabash R.R. Co., 370 U.S. 626, 629 (1962); Fed.R.Civ.P.
41(b). The factors that an appellate court must assess in ruling on a district
court's dismissal for failure to prosecute "include (1) the duration of plaintiff's
failures; (2) whether plaintiff had received notice that further delays would
result in dismissal; (3) whether defendant is likely to be prejudiced by further
delay; (4) whether the district judge has carefully balanced the need to alleviate
court calendar congestion and a party's right to due process; and (5) whether the

court has assessed the efficacy of lesser sanctions." Romandette v. Weetabix

Co., Inc., 807 F.2d 309, 312 (2d Cir.1986).
13

At least the majority of these factors tilt against the plaintiff. First, and most
importantly, Fabiano waited seven years to seek to reactivate the action.
Second, the plaintiff's statement in 1985 that she would "immediately" inform
the court of the disposition of the Federal Circuit's action implies that she was
on notice of the legal ramifications of delays. Third, the delays prejudiced the
defendant by, inter alia, making it less likely that witnesses would be available
and able accurately to recollect the relevant incidents leading to the plaintiff's
termination. Fourth, as the court noted, "it does not appear that plaintiff's due
process rights will be violated since she has sought to have the benefit of delay
in preparing her case while depriving her adversary, by such delay, of the
ability to defend it effectively." Fifth, the court noted that "[i]t does not appear
that a lesser sanction than dismissal would avoid prejudice to the defendant."

14

We find that the district court did not abuse its discretion in dismissing the
plaintiff's discrimination claim for failure to prosecute. We have examined all
of the plaintiff's contentions, and find them to be without merit. The district
court's judgment is therefore affirmed.

The Honorable Charles S. Haight, Jr., Senior District Judge of the United
States District Court for the Southern District of New York, sitting by
designation

Benson also appeals, under docket number 96-6104, from another judgment by
the same court. That judgment upheld administrative decisions denying
Fabiano disability benefits and relief for an allegedly improper job
reclassification. We affirm that judgment in a separate summary order issued
today